Arrest — Concept and Procedure (ss.35–62 BNSS) — BNSS (Criminal Law II) Notes

Arrest — Concept and Procedure (ss.35–62 BNSS)

Arrest is the sharpest exercise of State power over a free citizen — a temporary suspension of the fundamental right to liberty. The BNSS (like the CrPC) therefore surrounds it with rules: who may arrest, when without a warrant, and how. Miss one of the three limbs and you miss half the marks on the most-set essay in Unit I.

An arrest is the act of taking a person into custody under legal authority for an alleged offence. It is not defined in the Sanhita, but the elements are: (a) an actual touch or confinement of the body (or submission to custody), (b) by a person with authority, (c) with intent to arrest.

A. Who may arrest

A police officer — with a warrant, or without one in the situations of s.35.
A private person (s.40 [s.43 CrPC]) — may arrest one who in his presence commits a non-bailable and cognizable offence, or a proclaimed offender, and must hand him to the police without unnecessary delay.
A Magistrate (s.41 [s.44 CrPC]) — when an offence is committed in his presence, or he may arrest a person for whose arrest he is competent to issue a warrant.

B. When a police officer may arrest without a warrant (s.35 [s.41 CrPC])

Chiefly: a person who commits a cognizable offence in the officer’s presence; against whom a reasonable complaint or credible information exists of a cognizable offence punishable up to 7 years, if arrest is necessary (to prevent further offence, ensure proper investigation, prevent tampering, or secure attendance); a proclaimed offender; a person with stolen property; one who obstructs an officer; a deserter; and so on. Notice of appearance (s.35(3) [s.41A CrPC]): for offences up to 7 years where arrest is not necessary, the officer must issue a notice to appear instead of arresting.

C. Procedure and safeguards on arrest

How arrest is made (s.43 [s.46 CrPC]). By touching or confining the body, unless there is submission; reasonable force may be used, but handcuffing is restricted (s.43(3)); a woman shall ordinarily be arrested only by a woman police officer, and not after sunset / before sunrise except in exceptional cases with a woman officer and a Magistrate’s prior permission (s.43(5)).
Search of arrested person (s.49 [s.51 CrPC]); of place entered (s.44).
Pursuit anywhere in India (s.45 [s.48 CrPC]); break-open of premises (s.44 [s.47 CrPC]). A police officer may pursue and arrest an offender anywhere in India, and may break open premises if entry is refused.
Medical examination (ss.51–53); production before Magistrate in 24 hours (s.58). (See topic 13.)

🧩 WORKED EXAMPLE — arrest after pursuit outside the circle

Facts. An investigating officer pursues an offender he may arrest without warrant; the offender pushes him and escapes; the officer arrests him outside his own police circle.

Rule. Under s.45 BNSS [s.48 CrPC] a police officer may pursue and arrest an offender anywhere in India — territorial police limits do not bar the arrest.

Apply. The arrest beyond the officer’s circle, made in hot pursuit of an offender he was empowered to arrest, is lawful. The decoy is that he acted “beyond his territorial limits”.

Conclusion. The arrest is legal; the officer’s power to arrest follows the offender across police boundaries.

Section 35(1) BNSS: “Any police officer may without an order from a Magistrate and without a warrant, arrest any person — (a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received… of his having been concerned in any cognizable offence punishable with imprisonment… and the police officer is satisfied that such arrest is necessary…”

In Simple Terms: A police officer may arrest without a warrant when a cognizable offence happens before him or there is credible information of one — but for less-serious offences only if arrest is genuinely necessary.

flowchart TD
    ROOT["Arrest under BNSS"]:::root
    ROOT --> WHO["WHO may arrest"]:::leaf
    WHO --> W1["Police (s.35, with/without warrant)"]:::leaf
    WHO --> W2["Private person (s.40)"]:::leaf
    WHO --> W3["Magistrate (s.41)"]:::leaf
    ROOT --> WHEN["WHEN without warrant (s.35)"]:::leaf
    WHEN --> N1["Cognizable offence in presence"]:::leaf
    WHEN --> N2["Credible info + arrest necessary"]:::leaf
    WHEN --> N3["Proclaimed offender / stolen property"]:::leaf
    ROOT --> HOW["HOW / safeguards"]:::leaf
    HOW --> H1["s.43 touch/confine; woman by woman officer"]:::leaf
    HOW --> H2["s.45 pursuit anywhere in India"]:::leaf
    HOW --> H3["s.58 produce in 24 hours"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Joginder Kumar v. State of U.P. (1994) — arrest is not automatic on accusation; the officer must justify its necessity.
D.K. Basu v. State of West Bengal (1997) — laid down mandatory arrest safeguards (memo of arrest, information to a relative, medical exam) — now largely codified in the BNSS.
Arnesh Kumar v. State of Bihar (2014) — for offences up to 7 years, arrest must be necessity-based; the source of the s.35(3) notice-to-appear rule.

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